Title
Hedges vs. Obama
Date
July 20, 2013
State or Country
New York
County/City:
United States Court of Appeals for the Second Circuit
The Court the Case was filed in
Thurgood Marshall United States Courthouse
Type of Case
Federal Case regarding jursidiction and power of the Executive in a state of emergency
Judges
Amalya Lyle Kearse
Raymond Lohier
Lewis A. Kaplan
Plaintiff
Christopher Hedges journalist
From Wikipedia - https://en.wikipedia.org/wiki/Hedges_v._Obama
Hedges v. Obama[note 1][3][4] was a lawsuit filed in January 2012 against the Obama administration and members of the U.S. Congress[5] by a group including former New York Times reporter Christopher Hedges, challenging the National Defense Authorization Act for Fiscal Year 2012 (NDAA).[6] The legislation permitted the U.S. government to indefinitely detain people "who are part of or substantially support Al Qaeda, the Taliban or associated forces engaged in hostilities against the United States".[7] The plaintiffs contended that Section 1021(b)(2) of the law allows for detention of citizens and permanent residents taken into custody in the U.S. on "suspicion of providing substantial support" to groups engaged in hostilities against the U.S. such as al-Qaeda and the Taliban[6] respectively that the NDAA arms the U.S. military with the ability to imprison indefinitely journalists, activists and human-rights workers based on vague allegations.[8]
A federal court in New York issued a permanent injunction blocking the indefinite detention powers of the NDAA but the injunction was stayed by the Second Circuit Court of Appeals pending appeal by the Obama Administration. On July 17, 2013, the Second Circuit Court of Appeals overturned the district court's permanent injunction blocking the indefinite detention powers of the NDAA because the plaintiffs lacked legal standing to challenge the indefinite detention powers of the NDAA. The Supreme Court declined to hear the case on April 28, 2014, leaving the Second Circuit decision intact.[9]
History Summary
In May 2012, a federal court in New York issued a preliminary injunction which temporarily blocked the indefinite detention powers of the NDAA (section 1021(b) (2)) on the grounds of unconstitutionality.[10] On August 6, 2012 federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a notice of appeal.[11] The following day arguments from both sides were heard by U.S. District Judge Katherine B. Forrest during a hearing to determine whether to make her preliminary injunction permanent or not.[12] On September 12, 2012, Judge Forrest issued a permanent injunction,[13] but this was appealed by the Obama Administration on September 13, 2012.[3][6] A federal appeals court granted a U.S. Justice Department's request for an interim stay of the permanent injunction, pending the Second Circuit's consideration of the government's motion to stay the injunction throughout its appeal.[14][15][16] The court also said that a Second Circuit motions panel will take up the government's motion for stay pending appeal on September 28, 2012.[14][15][16] On October 2, 2012, the Second Circuit Court of Appeals ruled that the ban on indefinite detention will not go into effect until a decision on the Obama Administration's appeal is rendered.[17] The U.S. Supreme Court refused on December 14, 2012 to lift the stay pending appeal order issued by the U.S. Second Circuit Court of Appeals on October 2, 2012.[18]
Background
According to the text of Section 1021 of the NDAA provided that the U.S. President may authorize the armed forces to indefinitely detain the following persons set forth in § 1021(b)(2) of the NDAA:
A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Section 1021(e) of the NDAA, provided:
Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.[25]
Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint[26][27] January 13, 2012, in the U.S. District Court for the Southern District of New York in Manhattan, against Barack Obama and Secretary of Defense Leon Panetta in the case Hedges v. Obama, 12-cv-00331, U.S. District Court, Southern District of New York (Manhattan)[3][6] to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31, 2011.[28] Plaintiffs were journalist Christopher Hedges, Pentagon Papers, whistleblower Daniel Ellsberg, writer and linguist Noam Chomsky, Icelandic parliamentarian Birgitta Jónsdóttir, activist and RevolutionTruth founder Jennifer Bolen, Occupy London activist Kai Wargalla, journalist and founder of "US Day of Rage" Alexa O'Brien, and American academic Cornel West.[29][30] Besides Barack Obama and Leon Panetta other defendants are John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor.[31][32]
The plaintiffs said the NDAA chills speech by threatening constitutionally protected activities such as news reporting, protest and political organizing in defense of controversial causes such as the WikiLeaks case. They claim that the law not only put them at risk of arrest but also allows indefinite detentions of U.S. citizens on U.S. soil, and that the provisions are too vague.[30] The principal allegation made by the plaintiffs against the NDAA was that the vagueness of critical terms in the NDAA could be interpreted by the federal government in a way that authorizes them to label journalists and political activists who interview or support outspoken critics of the Obama administration's policies as "covered persons," meaning that they have given "substantial support" to terrorists or other "associated groups." Fearing that section 1021(b)(2) of the NDAA could be applied to journalists and that the specter of such a scenario would have a chilling effect on free speech and freedom of the press in violation of the First Amendment, Hedges filed his lawsuit on January 12, 2012. Naomi Wolf wrote for example in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA.[33] Plaintiff Bolen wrote that "My activities as a civil liberties, democracy advocate and independent journalist definitely leave me under the purview of the vague language of the NDAA [National Defense Authorization Act]" because of her contact with WikiLeaks activists and that "I believe that could leave me in imminent danger of harm."[30]
Hedges' complaint claimed that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a "covered person" who, by way of such writings, interviews and/or communications, "substantially supported" or "directly supported" "al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, ... under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]."
Defendant
President of the United States Barry Soetoro
From Wikipedia - https://en.wikipedia.org/wiki/Hedges_v._Obama
During a hearing on March 29, 2012 plaintiffs Alexa O'Brien, Kai Wargalla and Christopher Hedges testified. O'Brien testified that she shelved two investigations about Guantanamo detainees for fear of reprisal under the National Defense Authorization Act (NDAA). Wargalla said that she and other organizers from the Revolution Truth movement, which broadcasts "Live Panels" over the Internet on various topics, shelved the idea of inviting "groups like Hamas", a U.S.-designated terrorist organization, after the NDAA was passed. Hedges stated the National Defense Authorization Act affects him personally. Government lawyers in return did not offer any witnesses in support of the law.[34]
In a post-hearing memorandum[35] the lawyers for the plaintiffs rejected the U.S. governments repeated position that the NDAA is merely an "affirmation" of the Authorization for Use of Military Force Against Terrorists (AUMF). "This court need not and should not indulge the fiction that section 1021 merely acknowledges authority latent in the AUMF," the memo stated.[36] The plaintiffs outlined the NDAA and AUMF in the memorandum. "AUMF authority is linked to the 9/11 attacks, and the purpose of AUMF authority is 'to prevent any future acts of international terrorism against the United States' by those involved in the 9/11 attacks, and those that harbored them," the memorandum states.
By contrast, Section 1021(b)(2) authority is linked to no event, states no specific purpose, and extends to 'covered persons' who 'substantially support' those 'that are engaged in hostilities against the United States or its coalition partners,' a far broader 'catchment' than the AUMF.[36]
Lawmakers, free-press advocates, small-government partisans, conservative think tanks, pro-gun groups, border-control activists, civil libertarians, a pastor and a professor, acting as amici curiae, stated in this context that the constitutionality of the AUMF authorization merits review[36][37] and that the NDAA violates the Treason Clause of the U.S. Constitution.[37]
Document Link 2
https://www.legalreader.com/the-importance-of-hedges-v-obama/
Comments
Oral arguments were heard before the U.S. Second Circuit Court of Appeals on February 6, 2013.[19][20] The U.S. Supreme Court refused again on February 19, 2013 to lift the stay pending appeal order issued by the U.S. Second Circuit Court of Appeals on October 2, 2012.[21][22] The Second Circuit Court of Appeals overturned on July 17, 2013 the district court's ruling which struck down § 1021(b)(2) of NDAA as unconstitutional because the plaintiffs lacked legal standing to challenge it.[23] The Supreme Court denied certiorari in an order issued April 28, 2014.[1][24]
Background
According to the text of Section 1021 of the NDAA provided that the U.S. President may authorize the armed forces to indefinitely detain the following persons set forth in § 1021(b)(2) of the NDAA:
A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
Section 1021(e) of the NDAA, provided:
Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.[25]
Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint[26][27] January 13, 2012, in the U.S. District Court for the Southern District of New York in Manhattan, against Barack Obama and Secretary of Defense Leon Panetta in the case Hedges v. Obama, 12-cv-00331, U.S. District Court, Southern District of New York (Manhattan)[3][6] to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31, 2011.[28] Plaintiffs were journalist Christopher Hedges, Pentagon Papers, whistleblower Daniel Ellsberg, writer and linguist Noam Chomsky, Icelandic parliamentarian Birgitta Jónsdóttir, activist and RevolutionTruth founder Jennifer Bolen, Occupy London activist Kai Wargalla, journalist and founder of "US Day of Rage" Alexa O'Brien, and American academic Cornel West.[29][30] Besides Barack Obama and Leon Panetta other defendants are John McCain, John Boehner, Harry Reid, Nancy Pelosi, Mitch McConnell and Eric Cantor.[31][32]
The plaintiffs said the NDAA chills speech by threatening constitutionally protected activities such as news reporting, protest and political organizing in defense of controversial causes such as the WikiLeaks case. They claim that the law not only put them at risk of arrest but also allows indefinite detentions of U.S. citizens on U.S. soil, and that the provisions are too vague.[30] The principal allegation made by the plaintiffs against the NDAA was that the vagueness of critical terms in the NDAA could be interpreted by the federal government in a way that authorizes them to label journalists and political activists who interview or support outspoken critics of the Obama administration's policies as "covered persons," meaning that they have given "substantial support" to terrorists or other "associated groups." Fearing that section 1021(b)(2) of the NDAA could be applied to journalists and that the specter of such a scenario would have a chilling effect on free speech and freedom of the press in violation of the First Amendment, Hedges filed his lawsuit on January 12, 2012. Naomi Wolf wrote for example in her affidavit that she has refused to conduct many investigative interviews for fear that she could be detained under the auspices of applicable sections of the NDAA.[33] Plaintiff Bolen wrote that "My activities as a civil liberties, democracy advocate and independent journalist definitely leave me under the purview of the vague language of the NDAA [National Defense Authorization Act]" because of her contact with WikiLeaks activists and that "I believe that could leave me in imminent danger of harm."[30]
Hedges' complaint claimed that his extensive work overseas, particularly in the Middle East covering terrorist (or suspected terrorist) organizations, could cause him to be categorized as a "covered person" who, by way of such writings, interviews and/or communications, "substantially supported" or "directly supported" "al-Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners, ... under §1031(b)(2) and the AUMF [Authorization for Use of Military Force]."